1. The application before this Court for consideration and determination is the Notice of Motion Application dated March 25, 2025, by the 2nd Defendant. It seeks orders to dismiss the suit against it and, alternatively, to strike out the 2nd Defendant’s name from the pleadings and proceedings.
2. Mr. Daniel Kyalo's affidavit supports the application, while the Plaintiffs oppose it through the Replying Affidavit of Ms. Jasmin Martin.
3. The application was canvassed based on written submissions. I recognize the submissions by the counsels representing the opposing parties, which address the relevant issues by referencing applicable laws and judicial precedents.
4. From the materials and submissions provided, the issues that emerge from the application, which I frame for the court's decision, are whether the suit is legally invalid and or a non-starter due to the alleged failure to serve the 2nd Defendant with a summons to enter appearance. Additionally, I consider whether the Suit is time-barred and whether the 2nd Defendant is a proper and or necessary party to the suit.
5. Regarding the service of the summons to enter an appearance, the 2nd Defendant argues that the summons have not been served on them for over two years. An appointment of an advocate has been filed to represent the 2nd Defendant and present its grievances in this matter. According to the 2nd Defendant, failure to serve summons on the parties is fatal because it violates mandatory provisions of Order 5 Rule 1 of the Civil Procedure Rules.
6. The Plaintiff states that the current case was filed at the Environment and Land Court in Nairobi under case number ELC No. 363 of 2022, but it was later transferred to the Environment and Land Court in Malindi under case number ELC No. E009 of 2023. After being served with the pleadings, the 2nd Defendant filed its Statement of Defence dated September 4, 2023. In its Defence, the 2nd Defendant did not object to the alleged non-service of the Summons to Enter Appearance. Moreover, the 2nd Defendant has, for over 16 months, submitted to the court's jurisdiction by actively participating in proceedings and has not raised any objection regarding the alleged non-service of the summons to enter appearance.
7. I agree with the Plaintiffs that, having appointed an advocate to represent it, filed a defence, and participated in the progression of the matter, the 2nd Defendant waived the right to be served with summonses. See Amina Hersi Moghe and others v Diamond Trust Bank Kenya Limited & another 2021 KEHC 4303 (KLR):
“It takes that position that where, even without the issuance and service of Summons, a Defendant enters appearance or files defence or otherwise actively participates in defending its position in proceedings without protesting that it has not been served then it will be taken to have waived its right to challenge the validity of the suit on account of failure to comply with Order 5 rule 1.”
8. Regarding the limitation of actions, the 2nd Defendant argues that, based on the pleadings, documents, and statements filed in court on behalf of the Plaintiffs, it is clear that the Plaintiffs aim to enforce a purported sale agreement dated December 23, 2014. This agreement was entered into between the late Ian Kipkoech Martin and the first 1st, Pierra Waithera Cesaroni, concerning the suit property referenced as number 5025/33 Vipingo.
9. The 2nd Defendant, Vipingo Beach Limited (VBL), claims it was not a party to this agreement. According to the Agreement, the suit property was to be sold at an agreed purchase price of Kshs. 13,500,000.00, which the Plaintiffs state was paid in full, including any incidental costs related to the purchase. The Plaintiffs further state that the late Ian Kipkoech Martin passed away before the property transfer could be completed in their names. They argue that since the property belongs to the estate of the late Mr. Martin, it must be transferred to the Plaintiffs for distribution among the late Mr. Martin's beneficiaries. However, the 1st Defendant has failed, refused, or neglected to surrender the transfer documents in her possession to facilitate this transfer. As outlined in Paragraph 17, the Plaintiffs explain that they filed this suit seeking the Court's intervention on this basis.
10. The suit is opposed, and the 2nd Defendant contends that its position can be best understood through the contents of the Agreement between the Plaintiffs and the 1st Defendant, a contract to which VBL was not a party. VBL was unaware of the sale of the property, as it was neither notified nor asked for its consent by the 1st Defendant.
11. Given the circumstances, the 2nd Defendant contends that the proper position regarding VBL is that the Plaintiffs are strangers to VBL, and no cause of action can be sustained against them by the Plaintiffs. Furthermore, without prejudice to the above, it is clear from the Amended Plaint that the issues in this case mainly involve the Plaintiffs and the 1st Defendant. Essentially, the Plaintiffs are seeking specific performance or enforcement of the sale agreement dated December 23, 2014.
12. The 2nd Defendant asserts that under Condition 6 of the Agreement, the completion date was set to be within 90 days from the signing date (December 23, 2014), meaning by March 23, 2015. The parties considered time to be of the essence (Condition 17). It is therefore undisputed that the suit is based on a contract, making the provisions of section 4(1) of the Limitation of Actions Act applicable. Hence, the 2nd Defendant argues that the suit should have been filed within six years from December 23, 2014, or at the latest, by March 23, 2015, which was the completion date. The Plaintiffs, according to Conditions 3, 4, and 6 of the Agreement, have not shown this Court that the remaining Kshs. 9,000,000.00 was paid within 90 days. The Plaintiffs also have not demonstrated whether this period was ever extended by mutual agreement of the parties.
13. The 2nd Defendant argues that the Plaintiff’s right to specific performance under The Agreement expired six years after December 23, 2014, according to Section 4 of the Limitation of Actions Act. Therefore, any right to specific performance would have been extinguished by December 23, 2020. Consequently, when the suit was filed against the Defendants in 2022—about two years later—it was time-barred, which deprives this Court of jurisdiction to hear and decide the case.
14. To support the previous statement, the 2nd Defendant cites the decision in Dennis Nyandu v Francis Aburi Oyaro [2021] eKLR, where the court referenced the decision in Iga v Makerere University [1972] EA that a plaint which is barred by limitation is a plaint barred by law.
15. The 2nd Defendant also cites the decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR that all courts must never provide succor or cover to parties who display scant respect for rules and timelines.
16. On this issue, the Plaintiff argues that the cause of action in this case arose when the full purchase price for the property known as Land Reference Number 5025/33 Vipingo was paid, and the Defendants failed to execute and surrender the necessary documents to facilitate the transfer of the property. The last installment of the purchase price was paid on January 18, 2018. Therefore, the statutory period began to run from that date. The case was filed in November 2022, which is within the six-year limit. See Mathew Njoroge Kabetu v Kiambu Dandora Farmers Co. Ltd & 5 others [2014] eKLR.
17. The Plaintiff further submits that it is mistaken for the 2nd Defendant to suggest that time began to run from the date of the contract; instead, time started after the purchase price was fully paid, but the Defendants failed to execute and surrender the transfer documents. See Kihumbu v Kariuki (Environment & Land Case E002 of 2021) [2022] KEELC 4896 (KLR) (16 August 2022) (Judgment).
18. I agree with the Plaintiffs that the calculation of time for the purposes of the Statute of Limitations began on January 18, 2018, the date of the last installment payment. Therefore, the statutory period started on that date. The case was filed in November 2022, which falls within the six-year limitation period.
19. Additionally, the 2nd Defendant has indicated through correspondence that it would execute transfer documents once the outstanding service charges and legal fees were paid. Moreover, the Plaintiffs have fulfilled these obligations by paying the outstanding service charges and pending fees. They have also continued paying the service charges for the Suit Property at the 2nd Defendant's request. See pages 7 to 13 of the Plaintiffs’ Replying Affidavit. Despite the 2nd Defendant receiving the service charge and the payment of legal fees, it has to date refused to issue the transfer documents or give its consent to transfer the Suit Property, despite several reminders.
20. I align myself with the decision cited by the Plaintiff in Centre Park Plaza Ltd v Rural Housing Estates Ltd (Environment and Land Case E013 of 2022) [2023] KEELC 19864 (KLR) (21 September 2023) (Judgment), which held that:
”In the instant case, the plaintiff produced correspondence to show that the defendant had all along expressed its willingness to hand over the title documents to the Plaintiff so as to facilitate the transfer of the suit properties. There is correspondence acknowledging the fact that the plaintiff had paid the land rates for the period 2012-2021 on the basis of the agreement between the plaintiff and the defendant. It is therefore my finding that by virtue of section 39 (1) (b) of the Limitation of Actions Act, the Defendant is estopped from pleading limitation and the suit is therefore not time-barred.”
21. Therefore, the 2nd Defendant is estopped from pleading limitation, and the suit is not time-barred.
22. In regard to the decision on whether to remove the name of the 2nd Defendant or to dismiss the claim against it, the 2nd Defendant presents comparable reasons, asserting that it lacks privity of contract with the Plaintiff based on the sale agreement entered into between the Plaintiff and the 2nd Defendant. Refer to Housing Finance Co. of Kenya Ltd v Gilbert Kibe Njuguna, HCCC No. 1601, cited in the case of Francis Joseph Kamau Ichatha v Housing Finance Company of Kenya Limited [2014] eKLR, Charles Njihia Ndung’u v Mercy Wamaitha Kaburi [2018] eKLR, and Agricultural Finance Corporation v Lendetia Ltd. [1985] eKLR for a comprehensive understanding of the doctrine of privity of contract.
23. Conversely, the Plaintiff claims that the 2nd Defendant is the Management Company for the Suit Property. Only the 2nd Defendant can share transfer documents related to properties owned by its shareholders. The 2nd Defendant also shared a sample transfer agreement with its shareholders via email sent on January 21, 2023. The email read as follows:
“…so as to streamline sale and transfer of plots we have come up with the attached document which will as well make the transfer process easy. “
24. The plaintiff contends that once the payment of the purchase price was completed, the plaintiff, through their advocates, requested the 2nd defendant to share the transfer documents to facilitate the transfer of the property. The 2nd defendant, through their advocates, responded to the letter and indicated:
“To enable us to proceed, we will require your client to undertake to pay our legal fees for all work to be done by us in order to facilitate the process to ensure the successful sale of the property to Ian Kipkoech Martin.”
25. To the Plaintiff with whom I concur, this indicates that the 2nd Defendant acknowledges that, without its consent, the Suit Property cannot be transferred to the Plaintiffs. The Plaintiffs have also complied with the requirement set by the 2nd Defendant and settled the outstanding service charge as well as the legal fees. To date, the 2nd Defendant has been receiving service charge payments from the Plaintiffs directly regarding the Suit Property but has, without reason, failed to surrender the transfer documents or its consent to transfer the property to the Plaintiffs.
26. In Wambugu Road Estate Limited and another v Mukesh Kesharia and another [2019] eKLR, the court held that:
“Bhupinder sold the Suit Property to the 1st Defendant who in turn sold it to the 2nd Defendant. What was left was the consent from the management company to effect the transfer of the lease, but the 1st Plaintiff proved uncooperative and refused to give its consent for ulterior motives.”
27. It follows that the 2nd Defendant is a necessary party to this case as the Management Company responsible for the consent to transfer. The Plaintiffs, in the Amended Plaint, are requesting an order for the Defendants to execute all necessary documents to legally transfer the Suit Property. It is crucial that the 2nd Defendant signs the transfer documents before the transfer can occur. Without the 2nd Defendant executing the Transfer Order, the Court cannot issue an effective decree in this matter.
28. Arising from the foregoing, the Application dated 25th March 2025 is hereby dismissed with costs.
Dated, signed, and delivered at Malindi virtually on this 24th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Ms. Essaje for the Applicant
Happy: Court Assistant
In the Absence of:
Ms. Njoroge for the Respondents
2. Mr. Daniel Kyalo's affidavit supports the application, while the Plaintiffs oppose it through the Replying Affidavit of Ms. Jasmin Martin.
3. The application was canvassed based on written submissions. I recognize the submissions by the counsels representing the opposing parties, which address the relevant issues by referencing applicable laws and judicial precedents.
4. From the materials and submissions provided, the issues that emerge from the application, which I frame for the court's decision, are whether the suit is legally invalid and or a non-starter due to the alleged failure to serve the 2nd Defendant with a summons to enter appearance. Additionally, I consider whether the Suit is time-barred and whether the 2nd Defendant is a proper and or necessary party to the suit.
5. Regarding the service of the summons to enter an appearance, the 2nd Defendant argues that the summons have not been served on them for over two years. An appointment of an advocate has been filed to represent the 2nd Defendant and present its grievances in this matter. According to the 2nd Defendant, failure to serve summons on the parties is fatal because it violates mandatory provisions of Order 5 Rule 1 of the Civil Procedure Rules.
6. The Plaintiff states that the current case was filed at the Environment and Land Court in Nairobi under case number ELC No. 363 of 2022, but it was later transferred to the Environment and Land Court in Malindi under case number ELC No. E009 of 2023. After being served with the pleadings, the 2nd Defendant filed its Statement of Defence dated September 4, 2023. In its Defence, the 2nd Defendant did not object to the alleged non-service of the Summons to Enter Appearance. Moreover, the 2nd Defendant has, for over 16 months, submitted to the court's jurisdiction by actively participating in proceedings and has not raised any objection regarding the alleged non-service of the summons to enter appearance.
7. I agree with the Plaintiffs that, having appointed an advocate to represent it, filed a defence, and participated in the progression of the matter, the 2nd Defendant waived the right to be served with summonses. See Amina Hersi Moghe and others v Diamond Trust Bank Kenya Limited & another 2021 KEHC 4303 (KLR):
“It takes that position that where, even without the issuance and service of Summons, a Defendant enters appearance or files defence or otherwise actively participates in defending its position in proceedings without protesting that it has not been served then it will be taken to have waived its right to challenge the validity of the suit on account of failure to comply with Order 5 rule 1.”
8. Regarding the limitation of actions, the 2nd Defendant argues that, based on the pleadings, documents, and statements filed in court on behalf of the Plaintiffs, it is clear that the Plaintiffs aim to enforce a purported sale agreement dated December 23, 2014. This agreement was entered into between the late Ian Kipkoech Martin and the first 1st, Pierra Waithera Cesaroni, concerning the suit property referenced as number 5025/33 Vipingo.
9. The 2nd Defendant, Vipingo Beach Limited (VBL), claims it was not a party to this agreement. According to the Agreement, the suit property was to be sold at an agreed purchase price of Kshs. 13,500,000.00, which the Plaintiffs state was paid in full, including any incidental costs related to the purchase. The Plaintiffs further state that the late Ian Kipkoech Martin passed away before the property transfer could be completed in their names. They argue that since the property belongs to the estate of the late Mr. Martin, it must be transferred to the Plaintiffs for distribution among the late Mr. Martin's beneficiaries. However, the 1st Defendant has failed, refused, or neglected to surrender the transfer documents in her possession to facilitate this transfer. As outlined in Paragraph 17, the Plaintiffs explain that they filed this suit seeking the Court's intervention on this basis.
10. The suit is opposed, and the 2nd Defendant contends that its position can be best understood through the contents of the Agreement between the Plaintiffs and the 1st Defendant, a contract to which VBL was not a party. VBL was unaware of the sale of the property, as it was neither notified nor asked for its consent by the 1st Defendant.
11. Given the circumstances, the 2nd Defendant contends that the proper position regarding VBL is that the Plaintiffs are strangers to VBL, and no cause of action can be sustained against them by the Plaintiffs. Furthermore, without prejudice to the above, it is clear from the Amended Plaint that the issues in this case mainly involve the Plaintiffs and the 1st Defendant. Essentially, the Plaintiffs are seeking specific performance or enforcement of the sale agreement dated December 23, 2014.
12. The 2nd Defendant asserts that under Condition 6 of the Agreement, the completion date was set to be within 90 days from the signing date (December 23, 2014), meaning by March 23, 2015. The parties considered time to be of the essence (Condition 17). It is therefore undisputed that the suit is based on a contract, making the provisions of section 4(1) of the Limitation of Actions Act applicable. Hence, the 2nd Defendant argues that the suit should have been filed within six years from December 23, 2014, or at the latest, by March 23, 2015, which was the completion date. The Plaintiffs, according to Conditions 3, 4, and 6 of the Agreement, have not shown this Court that the remaining Kshs. 9,000,000.00 was paid within 90 days. The Plaintiffs also have not demonstrated whether this period was ever extended by mutual agreement of the parties.
13. The 2nd Defendant argues that the Plaintiff’s right to specific performance under The Agreement expired six years after December 23, 2014, according to Section 4 of the Limitation of Actions Act. Therefore, any right to specific performance would have been extinguished by December 23, 2020. Consequently, when the suit was filed against the Defendants in 2022—about two years later—it was time-barred, which deprives this Court of jurisdiction to hear and decide the case.
14. To support the previous statement, the 2nd Defendant cites the decision in Dennis Nyandu v Francis Aburi Oyaro [2021] eKLR, where the court referenced the decision in Iga v Makerere University [1972] EA that a plaint which is barred by limitation is a plaint barred by law.
15. The 2nd Defendant also cites the decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR that all courts must never provide succor or cover to parties who display scant respect for rules and timelines.
16. On this issue, the Plaintiff argues that the cause of action in this case arose when the full purchase price for the property known as Land Reference Number 5025/33 Vipingo was paid, and the Defendants failed to execute and surrender the necessary documents to facilitate the transfer of the property. The last installment of the purchase price was paid on January 18, 2018. Therefore, the statutory period began to run from that date. The case was filed in November 2022, which is within the six-year limit. See Mathew Njoroge Kabetu v Kiambu Dandora Farmers Co. Ltd & 5 others [2014] eKLR.
17. The Plaintiff further submits that it is mistaken for the 2nd Defendant to suggest that time began to run from the date of the contract; instead, time started after the purchase price was fully paid, but the Defendants failed to execute and surrender the transfer documents. See Kihumbu v Kariuki (Environment & Land Case E002 of 2021) [2022] KEELC 4896 (KLR) (16 August 2022) (Judgment).
18. I agree with the Plaintiffs that the calculation of time for the purposes of the Statute of Limitations began on January 18, 2018, the date of the last installment payment. Therefore, the statutory period started on that date. The case was filed in November 2022, which falls within the six-year limitation period.
19. Additionally, the 2nd Defendant has indicated through correspondence that it would execute transfer documents once the outstanding service charges and legal fees were paid. Moreover, the Plaintiffs have fulfilled these obligations by paying the outstanding service charges and pending fees. They have also continued paying the service charges for the Suit Property at the 2nd Defendant's request. See pages 7 to 13 of the Plaintiffs’ Replying Affidavit. Despite the 2nd Defendant receiving the service charge and the payment of legal fees, it has to date refused to issue the transfer documents or give its consent to transfer the Suit Property, despite several reminders.
20. I align myself with the decision cited by the Plaintiff in Centre Park Plaza Ltd v Rural Housing Estates Ltd (Environment and Land Case E013 of 2022) [2023] KEELC 19864 (KLR) (21 September 2023) (Judgment), which held that:
”In the instant case, the plaintiff produced correspondence to show that the defendant had all along expressed its willingness to hand over the title documents to the Plaintiff so as to facilitate the transfer of the suit properties. There is correspondence acknowledging the fact that the plaintiff had paid the land rates for the period 2012-2021 on the basis of the agreement between the plaintiff and the defendant. It is therefore my finding that by virtue of section 39 (1) (b) of the Limitation of Actions Act, the Defendant is estopped from pleading limitation and the suit is therefore not time-barred.”
21. Therefore, the 2nd Defendant is estopped from pleading limitation, and the suit is not time-barred.
22. In regard to the decision on whether to remove the name of the 2nd Defendant or to dismiss the claim against it, the 2nd Defendant presents comparable reasons, asserting that it lacks privity of contract with the Plaintiff based on the sale agreement entered into between the Plaintiff and the 2nd Defendant. Refer to Housing Finance Co. of Kenya Ltd v Gilbert Kibe Njuguna, HCCC No. 1601, cited in the case of Francis Joseph Kamau Ichatha v Housing Finance Company of Kenya Limited [2014] eKLR, Charles Njihia Ndung’u v Mercy Wamaitha Kaburi [2018] eKLR, and Agricultural Finance Corporation v Lendetia Ltd. [1985] eKLR for a comprehensive understanding of the doctrine of privity of contract.
23. Conversely, the Plaintiff claims that the 2nd Defendant is the Management Company for the Suit Property. Only the 2nd Defendant can share transfer documents related to properties owned by its shareholders. The 2nd Defendant also shared a sample transfer agreement with its shareholders via email sent on January 21, 2023. The email read as follows:
“…so as to streamline sale and transfer of plots we have come up with the attached document which will as well make the transfer process easy. “
24. The plaintiff contends that once the payment of the purchase price was completed, the plaintiff, through their advocates, requested the 2nd defendant to share the transfer documents to facilitate the transfer of the property. The 2nd defendant, through their advocates, responded to the letter and indicated:
“To enable us to proceed, we will require your client to undertake to pay our legal fees for all work to be done by us in order to facilitate the process to ensure the successful sale of the property to Ian Kipkoech Martin.”
25. To the Plaintiff with whom I concur, this indicates that the 2nd Defendant acknowledges that, without its consent, the Suit Property cannot be transferred to the Plaintiffs. The Plaintiffs have also complied with the requirement set by the 2nd Defendant and settled the outstanding service charge as well as the legal fees. To date, the 2nd Defendant has been receiving service charge payments from the Plaintiffs directly regarding the Suit Property but has, without reason, failed to surrender the transfer documents or its consent to transfer the property to the Plaintiffs.
26. In Wambugu Road Estate Limited and another v Mukesh Kesharia and another [2019] eKLR, the court held that:
“Bhupinder sold the Suit Property to the 1st Defendant who in turn sold it to the 2nd Defendant. What was left was the consent from the management company to effect the transfer of the lease, but the 1st Plaintiff proved uncooperative and refused to give its consent for ulterior motives.”
27. It follows that the 2nd Defendant is a necessary party to this case as the Management Company responsible for the consent to transfer. The Plaintiffs, in the Amended Plaint, are requesting an order for the Defendants to execute all necessary documents to legally transfer the Suit Property. It is crucial that the 2nd Defendant signs the transfer documents before the transfer can occur. Without the 2nd Defendant executing the Transfer Order, the Court cannot issue an effective decree in this matter.
28. Arising from the foregoing, the Application dated 25th March 2025 is hereby dismissed with costs.
Dated, signed, and delivered at Malindi virtually on this 24th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Ms. Essaje for the Applicant
Happy: Court Assistant
In the Absence of:
Ms. Njoroge for the Respondents